UNITED STATES of America, Plaintiff-Appellant, v. Terrell Lamont BYNUM, a/k/a Boo, a/k/a Boo-Man; Sumeka Plummer; Iris Johnson, Defendants-Appellees, 293 F.3d 192

Reversed by published opinion. Judge DIANA GRIBBON MOTZ wrote the majority opinion, in which Judge KING joined. Judge KING wrote a separate concurring opinion. Judge MICHAEL wrote a dissenting opinion. OPINION DIANA GRIBBON MOTZ, Circuit Judge. The Government appeals the district court’s order suppressing certain physical evidence seized pursuant to a search warrant. Finding that the good faith exception adopted by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), renders this evidence admissible even if the search warrant lacked probable cause, we reverse. I.

On February 10, 2000, Richmond Police Department Detective John O’Connor received information from a confidential informant that a black male known as “Boo-Man” possessed a large quantity of heroin and was dealing heroin in the end apartment (next to that of a Sequell Sedrick) on Walcott Place, in Richmond, Virginia.

The informant advised O’Connor that “Boo-Man” had “quite a bit of heroin, that he had some in his crotch, [and] that he kept it in his Cadillac.” The informant “described the Cadillac,” and related that Boo-Man “made trips ... out of the area frequently, back and forth to the apartment delivering drugs.” The informant' further told Detective O’Connor that Boo-Man and his group were “beefing with another group ... over a dispute at a dance hall.” Later that evening, Detective O’Connor applied for a warrant, making an affidavit as to these facts and further stating that for the previous eight years this confidential informant had provided the Richmond Police Department with accurate information, which law enforcement officers had corroborated through “DMV, and Criminal History Checks, Search warrants and arrests,” and that the information had led to the “seizure of large quantities of drugs, and guns” and several convictions.

On the basis of this affidavit, a state magistrate issued a search warrant for the apartment at 2234 Walcott Place. Detective O’Connor and other police officers conducted the search for several hours, beginning at 10:40 p.m. on February 10. The search yielded 196 gross grams of heroin, some marijuana, drug paraphernalia, a scale, bullets, and $10,750 in cash. The lessee of the apartment, Iris Johnson, was absent during the search, but two other residents of the apartment, Sumeka Plummer and Terrell Bynum (who the police learned was Boo Man), were present. However, the police arrested no one that evening.

On May 25, 2000, Drug Enforcement Administration (DEA) agent Kenneth Peterson sought another warrant to search 2234 Walcott Place. The affidavit, after two generic paragraphs identifying Agent Peterson as a DEA task force officer with training and experience in narcotics investigations, stated in relevant part: 3. This affidavit is made in support of a SEARCH WARRANT for the residence of Terrell BYNUM, located at 2234 Walcott Place, Richmond, VA. This location has been utilized by BYNUM in furtherance of drug trafficking crimes and is within the Eastern District of Virginia and the jurisdiction of the Court. 4.

BYNUM is described by the Virginia Department of Motor Vehicles as a male with a date of birth of 01/01/79 and social security number [ XXX-XX-XXXX ]. BYNUM has a criminal record in Virginia and is a convicted felon. 5. Information and intelligence provided in this investigation by a Confidential Source (CS) has been proven rehable and information provided to law enforcement has been verified. The CS has identified BYNUM as a large quantity dealer of heroin. 6.

On February 10, 2000, a search warrant conducted at 2234 Walcott Place, Richmond, VA by DEA and the Richmond Police Department resulted in the seizure of approximately 196 gross grams of heroin. $10,750 in U.S. Currency was also seized from within the residence. Additionally, a digital scale, razor blade and packaging material were seized from the residence. 7. Within the past 72 hours, the CS has observed a large quantity of heroin within the residence at 2234 Walcott Place, Richmond, VA. The CS observed BYNUM packaging heroin for distribution and delivering a portion of the narcotics to three associates.

A substantial amount of heroin remained within the residence after the delivery. An Assistant United States Attorney reviewed and signed the affidavit, his signature indicating his approval of it. On the basis of this affidavit, a United States Magistrate Judge issued a search warrant. Government agents, including Agent Peterson, executed a search pursuant to the warrant on the evening of May 25, 2000. This search yielded a small amount of marijuana, a loaded .40 caliber Beretta semi-automatic pistol, and unspent .380 caliber and 9mm caliber ammunition. Brief of Appellant at 7.

Shortly thereafter, a grand jury indicted Bynum, Plummer, and Johnson for multiple drug and firearm offenses. Bynum, Plummer, and Johnson moved to suppress the physical evidence that law enforcement authorities had seized pursuant to the February and May search warrants. The district court issued an order denying the suppression motion with respect to the February warrant, but granting it as to the May warrant. United States v. Bynum, 125 F.Supp.2d 772 (E.D.Va.2000). The Government appeals the latter ruling; Bynum, Plummer, and Johnson do not cross appeal.

Accordingly, the sole issue presented to us is whether the district court erred in suppressing evidence obtained pursuant to the May search warrant. II. In granting the motion to suppress on the basis of the Fourth Amendment exclusionary rule, the district court found (1) that no probable cause supported the warrant and (2) that the Leon good faith exception did not “save[ ] the yield of the May 25 search from suppression.” Id. at 797-99. The Government contends that the court erred with respect to Both rulings.

Assuming without deciding that no probable cause supported the warrant, we will proceed “immediately to a consideration of the officers’ good faith.” Leon, 468 U.S. at 925, 104 S.Ct. 3405 (recognizing the appropriateness of such an approach in some cases); accord United States v. Legg, 18 F.3d 240, 243 (4th Cir.1994).

Leon teaches that a court should not suppress the fruits of a search conducted under the authority of a warrant, even a “subsequently invalidated” warrant, unless “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405.

The Court explained that an officer could not be found to have acted with “objective reasonableness,” excluding application of this “good faith exception,” in any of the following circumstances: (1) “the magistrate ... was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth”; (2) the magistrate acted as a rubber stamp for the officers and so “wholly abandoned” his detached and neutral “judicial role”; (3) “an affidavit [is] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) “a warrant [is] so facially deficient— ie., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Id. at 923, 104 S.Ct. 3405 (internal quotation marks omitted).

In holding that the third circumstance described by the Leon Court barred application of the good faith exception in this case, the district court misidentified when this circumstance occurs. Thus, the court stated that “[t]he good faith exception ... does not apply” when the affidavit fails to provide “a substantial basis for determining the existence of probable cause.” Bynum, 125 F.Supp.2d at 797. “Substantial basis” provides the measure for determination of whether probable cause exists in the first instance. See United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that the third circumstance prevents a finding of objective good faith only when an officer’s affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citation omitted). This is a less demanding showing than the “substantial basis” threshold required to prove the existence of probable cause in the first place.

With the correct standard in mind, we believe it is clear that even if Agent Peterson’s affidavit does not provide a substantial basis for determining the existence of probable cause, see Illinois v.

Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (requiring a magistrate judge assessing probable cause for the issuance of a search warrant to determine “whether given all the circumstances set forth in the affidavit[,] ... including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place” (citations omitted)), it is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citation omitted).

In his affidavit, Agent Peterson (1) recited that Bynum resided at the apartment that he sought to search and had used the apartment in drug trafficking crimes, (2) stated Bynum’s birth date and social security number, (3) identified Bynum as a convicted felon with a criminal record in Virginia, (4) explained that a February 10 search of the same apartment had yielded 196 grams of heroin, drug paraphernalia and $10,750 in cash, and (5) related that a confidential informant who had “proven reliable” and whose information “ha[d] been verified,” provided “[finformation and intelligence ... in this investigation,” including identification of Bynum as a “large quantity heroin dealer” and observation that “[w]ithin the past 72 hours” Bynum had possessed “a large quantity of heroin” in the apartment.

Although in his affidavit, Agent Peterson did not expressly inform the magistrate judge that the confidential source was the same source who provided information for the February 10 search, from the affidavit the magistrate judge could reasonably have inferred a link between the confidential source and the February search. Paragraphs 3 and 4 of the affidavit establish that the warrant is requested to search 2234 Walcott Place, the residence of Terrell Bynum, a convicted felon, who has been using his home to traffic in illegal drugs.

In paragraph 5 the affidavit states that a confidential source “in this investigation” has supplied reliable information to law enforcement officers, which “has been verified.” The affidavit then proceeds chronologically to detail, in the remainder of paragraph 5, what information the informant previously has provided during the investigation, i.e., that Bynum is “a large quantity dealer of heroin,” and then, in paragraph 6, how law enforcement has verified that information, i.e., by recovering 196 gross grams of heroin from the same site — -2234 Walcott Place — in the February search.

The magistrate judge could, therefore, reasonably infer from reading paragraphs 5 and 6 seriatim, and in conjunction, that they are to be linked— to establish the veracity and reliability of the informant. The district court, however, noting the absence of any explicit fink or any other specific information as to the confidential source’s prior proved reliability, found that the Leon good faith exception did not “save[ ] the yield of the May 25 search from suppression.” Bynum, 125 F.Supp.2d at 797.

The court reasoned that the affidavit contained only “eoncluso-ry averments” of “three month old information” based on “the bare bones statement of an informant whose provenance was not in an affidavit which contained no underlying facts about the basis for the informant’s information” and so “[t]o apply the good faith exception here would allow the exception to swallow ... the exclusionary rule.” Bynum, 125 F.Supp.2d at 799. In so holding, the district court relied heavily on United States v.

Wilhelm, 80 F.3d 116 (4th Cir.1996), where we held that the good faith Leon exception did not apply, and asserted that “[t]he affidavit here is less substantial than the one described in Wilhelm to be ‘bare bones’ and thus deficient.” Id. at 798. We disagree; we believe that, in fact, the substantial differences between the facts in Wilhelm and those in the case at hand conclusively demonstrate why the Leon exception does apply here.

In Wilhelm, after receiving an anonymous telephone tip that an informant had seen marijuana being sold in the defendant’s home within the past 48 hours, an officer applied for a search warrant. Wilhelm, 80 F.3d at 117-18. The officer did not meet the informant before or after receiving the tip and did not know the informant. Id. at 118. In support of the warrant, the officer described the informant as a “concerned citizen” and a “mature person with personal connections with the suspects [who] has projected a truth-full [sic] demeanor to this applicant.” Id.

The officer’s only corroborating information was that she had confirmed directions to the residence and that the description of the marijuana and of the sale transactions was consistent with her knowledge of marijuana packaging and sales. Id. We held that the Leon good faith exception did not apply because the officer “could not reasonably rely on an unknown, unavailable informant without significant' corroboration,” id. at 123, and the magistrate thus acted only as a “rubber stamp” in approving a “bare bones” affidavit. Id. at 121.

We further noted that “[wjhile perhaps not undertaken with deliberate bad faith, [the officer]’s use of phrases such as ‘concerned citizen,’ ‘mature’ and ‘truthful demeanor’ ” struck us “as attempts to endue the affidavit with the appearance of genuine substance.” Id. at 123; cf. United States v. Baxter, 889 F.2d 731, 733-34 (6th Cir.1989) (refusing to apply good faith exception to “bare bones” affidavit in which officer misrepresented “anonymous” informant as “confidential” informant).

Here, unlike Wilhelm, the officer relied not on an unknown informant but one whom he knew and who had provided reliable information in the past that law enforcement officers had “verified.” The Supreme Court has repeatedly recognized that a proven, reliable informant is entitled to far more credence than an unknown, anonymous tipster. See, e.g., Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Although certainly it would have been preferable if Agent Peterson had expressly stated in his affidavit the basis for his statement as to his informant’s reliability, he did at least swear to the magistrate that he was relying on a known and proven confidential source, not a never-known, never-verified tipster as in Wilhelm. See Wilhelm, 80 F.3d at 120 (noting that “[upholding this warrant would ratify police use of an unknown, unproven informant — with little or no corroboration”). Thus, Agent Peterson’s affidavit does not send up the same sort of red flags as did' that in Wilhelm. Cf. United States v.

Blackwood, 913 F.2d 139 (4th Cir.1990) (approving as providing probable cause affiant’s use of unnamed “reliable and confidential informant” who had previously provided “true and accurate information” to purchase cocaine). Moreover, as noted above, in the case at hand the magistrate judge reasonably could have inferred from the affidavit that law enforcement officers had verified prior information obtained from this same confidential source by a fruitful search of the same search site (Bynum’s residence) just three and a half months earlier.

The Supreme Court has expressly recognized that affidavits in support of search warrants should not be subject to “[technical requirements of elaborate specificity,” and that a magistrate has the “authority ... to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant.” Gates, 462 U.S. at 235, 240, 103 S.Ct. 2317. Furthermore, the affidavit provided explicit corroboration of possible illegal drug activity at the search site, which far exceeds that in the affidavit at issue in Wilhelm.

Critically, Agent Peterson’s affidavit stated that Bynum was. a convicted felon with a criminal record in Virginia, who resided at the proposed search site, a site where officers had seized a large amount of heroin and United States currency less than four months earlier. An officer’s report in his affidavit of “the target’s prior criminal activity or record is clearly material to the probable cause determination,” United States v. Taylor, 985 F.2d 3, 6 (1st Cir.1993) (citation omitted), see also United States v.

Sumpter, 669 F.2d 1215, 1222 (8th Cir.1982) (“[A]n individual’s prior criminal activities and record [cited in a search warrant application] have a bearing on the probable cause determination.”), and law enforcement “reports” as to a defendant’s “previous drug smuggling activities” can corroborate a confidential informant’s “veracity.” United States v. Foree, 43 F.3d 1572, 1576 (11th Cir.1995); see also United States v.

Miller, 925 F.2d 695, 699-700 (4th Cir.1991) (holding informant’s tip corroborated, in part, because the officer “knew that [the defendant] had been involved in illegal narcotics in the past” based on his prior arrest of defendant for cocaine possession approximately one year earlier). In contrast, the only corroboration offered by the affiant in Wilhelm to bolster the anonymous tipster’s information was accurate directions to the defendant’s house, which, as we noted, were available to “[a]lmost anyone,” Wilhelm, 80 F.3d at 121, and which did not reveal anything about the defendant’s criminal activities.

Nor, again unlike Wilhelm, is there an indication in this case of any sort of bad faith by the officer who prepared the affidavit. The affiant in Wilhelm craftily choose his words in an attempt to clothe a totally anonymous source with “genuine substance.” Id. at 123. In contrast, as the district court recognized, “[t]here is nothing here to suggest that” Agent Peterson in any way “was dishonest.” J.A. at 361 (Transcript of Suppression Hearing at 331). Cf. Leon, 468 U.S. at 926, 104 S.Ct. 3405 (good faith exception not applicable if “the officers were dishonest”).

On the contrary, that Agent Peterson consulted with the prosecutor prior to applying for the search warrant provides additional evidence of his objective good faith, like the law enforcement officer in Leon, 468 U.S. at 902, 104 S.Ct. 3405, and unlike the officer in Wilhelm. See Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984); United States v. George, 971 F.2d 1113, 1124 (4th Cir.1992).

Given all of these circumstances, we are satisfied that Agent Peterson’s “reliance on the magistrate’s determination of probable cause was objectively reasonable.” Leon, 468 U.S. at 926, 104 S.Ct. 3405. In reaching its contrary conclusion, the district court may have found relevant Agent Peterson’s failure to state expressly in his affidavit that the confidential informant on whom he relied had also provided the information for the fruitful February search of the same apartment. See Bynum, 125 F.Supp.2d at 793-97.

The Government argued and the, district court seemed to accept that Agent Peterson knew when he applied for the warrant that he “was using information from the same informant” who had “produced information in the past which led to the successful search on February 10th.” J.A. 354 (Transcript of Suppression Hearing at 326). The district court also seemed to accept that if this linkage had been set forth in Agent Peterson’s affidavit, it would have been sufficient to establish probable cause. See Bynum, 125 F.Supp.2d at 793-97.

But, of course, as noted above, Agent Peterson’s affidavit did not expressly include this information. If the district court relied on the absence of this information in refusing to apply Leon’s good faith exception, that reliance was error.

When, as here, the affidavit itself provides information not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at 923, 104 S.Ct. 3405, a court should not refuse to apply the Leon good faith exception just because the officer fails to include in that affidavit all of the information known to him supporting a finding of probable cause. Cf.

Leon, 468 U.S. at 923, 104 S.Ct. 3405 (holding that good faith exception does not apply when “magistrate was misled by ... information that the affiant knew was false or would have known was false except for his reckless disregard of the truth” (emphasis added)); United States v. Vigeant, 176 F.3d 565, 573 (1st Cir.1999) (holding Leon good faith exception inapplicable when affiant recklessly omitted numerous material facts undermining affidavit’s persuasiveness, including indicia of confidential informant’s unreliability); United States v.

Reilly, 76 F.3d 1271, 1280 (2d Cir.1996) (holding that Leon good faith exception “does not protect searches by officers who fail to provide all potentially adverse information to the issuing judge, and for that reason, it does not apply here”). This is not to say that absent an affidavit with the required “indicia of probable cause,” Leon, 468 U.S. at 923, 104 S.Ct. 3405, we would conclude that additional facts, which the government proved were known to the affiant police officer, but not revealed to the magistrate prior to issuance of the search warrant, could be considered in the Leon analysis.

Courts have divided on this question. Compare United States v. Hove, 848 F.2d 137, 140 (9th Cir.1988) (holding when affidavit itself is totally lacking in indicia of probable cause, the Leon good faith reliance inquiry does not extend to facts known to officers but not included in affidavit); State v. Klosterman, 114 Ohio App.3d 327, 683 N.E.2d 100, 103-05 (1996) (same); and Janis v. Commonwealth, 22 Va.App. 646, 472 S.E.2d 649, 653-55 (1996) (same), with United States v.

Marion, 238 F.3d 965, 969 (8th Cir.2001) (holding that when assessing good faith under Leon a court looks at the “totality of the circumstances” including information demonstrating probable cause known to the affiant, but not included in his affidavit (internal quotation marks and citation omitted)); United States v. Taxacher, 902 F.2d 867, 871-73 (11th Cir.1990) (same); United States v. Word, No. IP 99-106-CR, 2000 WL 724041, at *13 *15 (S.D.Ind. May 31, 2000), aff'd, No. 00-2688, 2001 WL 13133,1 Fed.Appx. 491 (7th Cir. Jan.2, 2001) (same); and State v.

Edmonson, 257 Neb. 468, 598 N.W.2d 450, 460-62 (1999) (same). Our dissenting colleague, Judge Michael, makes a persuasive case that such information should not be considered in determining whether the officer displayed the objective reasonableness described in Leon. To so hold would certainly seem, as Judge Michael well explains, to undercut Fourth Amendment protections, and be at odds with the very purpose of the Leon good faith exception. On the other hand, to refuse to consider such information in making the Leon inquiry creates an anomaly.

Even though Leon itself renders admissible evidence obtained pursuant to a warrant supported by an affidavit that lacks probable cause, Judge Michael’s

interpretation of Leon would bar admission of evidence obtained pursuant to a warrant supported by the affidavit of an officer, who, in fact, possesses probable cause, but inadvertently omits some information from his affidavit. Today, we need not resolve this difficult question. Wholly apart from the information known to Agent Peterson but not included in his affidavit, that affidavit contained sufficient indicia of probable cause so as not to render reliance on it totally unreasonable.

Accordingly, we hold that the Leon good faith exception applies and the district court should not have suppressed the evidence obtained during the May 25, 2000 search. III. For these reasons, the judgment of the district court is REVERSED.